The importance of having a Health & Welfare LPA

"As long as someone can look after my finances it doesn't matter about my health".

This is a statement that we as solicitors, hear frequently. Whenever a client comes to see us about Lasting Powers of Attorney (LPA) it is usually to discuss who would have control of their finances if they were to become mentally incapable. It is very rare that people come to us to discuss who would make health decisions in these circumstances. Most clients are unaware that they can make an LPA that deals with their health and welfare and those that are like to think that they can rely on their “next of kin” to make important health decisions for them.

Health care professionals can decide, if it is in the clients best interests, to disclose confidential information about a patient’s health and care to a close relative and to involve them in the decision making process. This is perfectly legal, proper and in line with good practice. To that extent Health and Welfare LPAs can seem unnecessary. However, this is something of a grey area and the extent that doctors, carers and care home staff can and should be exercising the clinical discretion to breach strict patient confidentiality is unclear. It is important to note that Health and Welfare LPAs and advance directives will take precedence over “next of kin” rights.

If there is no Health and Welfare LPA and the doctor decides that he does not wish to breach patient confidentiality then it likely that adult social services will become involved and will start making decisions for the patient instead of the family being able to so. There have been a number of widely publicised cases where this has happened, resulting in the family having no say as to where their loved ones live, who visits them, what they eat or what healthcare they receive.

One of the most prolific of these cases (reported in the news) was that of an elderly lady called Betty Figg. Mrs Figg was 86 and suffered with acute Dementia. She was admitted to hospital with a swollen leg and increased forgetfulness. There was no Health and Welfare LPA so adult social services became involved recommending that she go into a care home. Her daughter agreed initially but became increasingly concerned about her standard of care. The daughter duly removed her mother from the care home (without the consent of social services) and took her home where she would care for her, having given up her business to do so.

Shortly after arriving home, social services arrived having obtained an emergency warrant from the magistrate’s court under the Mental Health Act on the grounds that “a person believed to be suffering from a mental disorder is being ill-treated”. They were accompanied by several police officers who threatened to use a battering ram to break down the door if Mrs Figg was not returned. Mrs Figg was duly taken back to the care home until such time as her daughter made renovations to her property to make it suitable for Mrs Figg to live there and attended a two-day carer’s course. This process took two months and Mrs Figg had to remain in the care home until social services were happy to release her into her daughters care.

This situation could have been avoided if a Health and Welfare LPA were in place as there would have been no need for the doctors to involve social services and the attorney (which can be a relative) would have been able to make the decisions instead.